365 U.S. 43 (1961), 34, Times Film Corp. v. City of Chicago

Docket Nº:No. 34
Citation:365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403
Party Name:Times Film Corp. v. City of Chicago
Case Date:January 23, 1961
Court:United States Supreme Court
 
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Page 43

365 U.S. 43 (1961)

81 S.Ct. 391, 5 L.Ed.2d 403

Times Film Corp.

v.

City of Chicago

No. 34

United States Supreme Court

Jan. 23, 1961

Argued October 19-20, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

The Municipal Code of Chicago, § 155-4, requires submission of all motion pictures for examination or censorship prior to their public exhibition and forbids their exhibition unless they meet certain standards. Petitioner applied for a permit to exhibit a certain motion picture and tendered the required license fee, but the permit was denied solely because petitioner refused to submit the film for examination. Petitioner sued in a Federal District Court for injunctive relief ordering issuance of the permit without submission of the film and restraining the city officials from interfering with its exhibition. It did not submit the film to the court or offer any evidence as to its content. The District Court dismissed the complaint on the ground, inter alia, that neither a substantial federal question nor a justiciable controversy was presented.

Held: the provision requiring submission of motion pictures for examination or censorship prior to their public exhibition is not void on its face as violative of the First and Fourteenth Amendments, and the judgment of dismissal is affirmed. Pp. 44-50.

(a) This case presents a justiciable controversy. Pp. 45-46.

(b) Petitioner's narrow attack on the ordinance does not require that any consideration be given to the validity of the standards set out therein, since they are not challenged and are not before this Court. Pp. 46-47.

(c) It has never been held that liberty of speech is absolute, or that all prior restraints on speech are invalid. Pp. 47-49.

(d) Although motion pictures are included within the free speech and free press guaranties of the First and Fourteenth Amendments, there is no absolute freedom to exhibit publicly, at least once, every kind of motion picture. Pp. 46, 49-50.

272 F.2d 90 affirmed.

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CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155-41 of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as "Don Juan." It applied for a permit, as Chicago's ordinance required, and tendered the license fee, but refused to submit the film for examination. The appropriate city official refused to issue the permit, and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner's refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F.Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law, since neither the film nor evidence of its content was submitted. 272 F.2d 90. The precise question at issue here never having

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been specifically decided by this Court, we granted certiorari, 362 U.S. 917 (1960).

We are satisfied that a justiciable controversy exists. The section of Chicago's ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such

permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination;

that the commissioner shall refuse the permit if the picture does not meet certain standards;2 and that, in the event of such refusal, the applicant [81 S.Ct. 393] may appeal to the mayor for a de novo hearing, and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement,

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the production of the film at the office of the commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952), we held that motion pictures are included "within the free speech and free press guaranty of the First and Fourteenth Amendments." Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155-4 of Chicago's ordinance requiring the submission of films prior to their public exhibition is not, on the grounds set forth, void on its face.

Petitioner's narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged, and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards.3 The films had all been submitted to the authorities, and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is "clearly drawn," or "vague," or "indefinite," or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved.

Moreover, there is not a word in the record as to the nature and content of "Don Juan." We are left entirely

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in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.

In this perspective, we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago, in Gitlow v. New York, 268 U.S. 652 (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota, 283 U.S. 697, 715-716 (1931), Chief Justice Hughes, in discussing the classic legal [81 S.Ct. 394] statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint

is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.

These included, the Chief Justice found, utterances creating "a hindrance" to the Government's war effort, and "actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." In addition, the Court said that "the primary requirements of decency may be enforced against obscene publications" and the

security of the community life may be protected against incitements to acts of violence and the overthrow by force

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of orderly government.

Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942), held that there were

certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

Thereafter, as we have mentioned, in Joseph Burstyn, Inc. v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was

not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.

At p. 502. Five years later, in Roth v. United States, 354 U.S. 476, 483 (1957), we held that "in light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance." Even those in dissent there found that

Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.

Id. at 514. And, during the same Term, in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 (1957), after characterizing Near v....

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